LSJ - May 2018

Legal updates EMPLOYMENT

One of the stated principles for the amalgamation was a perceived need to respond to the so called ‘industrial offensive’ against workers from the ‘neo-conservative commercial forces’ and the Federal Government … It is hardly surprising, therefore, that employers have expressed concern that … the amalgamated union will [be able] to exercise a degree of control over a considerable proportion of the nation’s key industries and critical infrastructure.

Integrity) Bill 2017. The Bill proposed to amend the RO Act so that the FWC could not fix an amalgamation date unless satisfied that the proposed amalgamation was in the ‘public interest’, having regard to whether any of the amalgamating unions had been the subject of criminal findings, involved in ‘obstructive’ unprotected industrial action, or found to be in contempt of court. The Bill passed the House of Representatives in October 2017 however the Government was unable to obtain the num- bers in the Senate. It also tried to pass similar legislation, again unsuccessfully, following the approval of the amalga- The CFMMEU will represent workers across an estimated 16 per cent of the Australian economy, including throughout the shipping industry, which accounts for 99 per cent of Austra- lia’s exports. It has signalled an intention to use this coverage and influence to pursue higher wages and more favourable conditions for its members, and will have significant capacity to organise and execute coordinated industrial campaigns across a number of industries. The combined revenue and resources of the amal- gamated union will also increase the CFMMEU’s capacity to pursue industrial reform, and indeed one of the stated principles for the amalgamation was a perceived need to respond to the so called ‘industrial offensive’ against workers from the ‘neo- conservative commercial forces’ and the Federal Government. It is hardly surprising, therefore, that employers have ex- pressed concern that the extensive reach and resources of the amalgamated union will enable it to exercise a degree of con- trol over a considerable proportion of the nation’s key indus- tries and critical infrastructure. mation in March. The implications

The Deputy President’s views on the applicant unions’ conduct

Having been satisfied that the penalty and contempt pro- ceedings were civil proceedings (and of the other matters in section 72), the Deputy President was required by the RO Act to set an amalgamation date. The Deputy President did, however, make it clear that he did not condone the Applicant unions’ conduct (at [238]): ‘Lest it be said that, by discharging my duties under statute which I am bound to do by my oath of office and by law, I condone any of the conduct for which any of the Appli- cant organisations or various of their officials have been held to account by the courts, nothing could be further from the truth. On no view can it be said that the conduct is acceptable and judicial officers have, particularly over recent years, been unanimous in the strong and unequivocal language used to describe and condemn some of the conduct.’ The appeal On 8 March 2018, the Objectors filed an appeal, relying pri- marily on the grounds that the Deputy President had erred in his conclusion that the proceedings against the CFMEU and MUA constituted ‘civil proceedings’ for the purposes of s 73(2) (c). The Objectors unsuccessfully sought a stay of the decision at first instance pending determination of the appeal. The appeal was heard on 9 April 2018 and, at the time of writing, a decision is pending. The political context Prompted by concerns raised by a number of employer bod- ies, the Federal Government sought to raise the bar for union amalgamations. In August 2017 – after the amalgamation proceedings were commenced – the Government introduced the Fair Work (Registered Organisations) Amendment (Ensuring

82 LSJ I ISSUE 44 I MAY 2018

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